Smallwood v. State , 1989 Wyo. LEXIS 92 ( 1989 )

GOLDEN, Justice.

Appellant Paul Douglas Smallwood seeks remand for resentencing before a different judge, claiming the sentencing judge erred in not granting appellant’s disqualification motion and abused his discretion by allegedly considering dismissed sexual abuse charges in imposing sentence. This criminal appeal was previously before us in Smallwood v. State, 748 P.2d 1141 (Wyo.1988) [Smallwood J], where we reversed the conviction and remanded to the district court because that court had erroneously accepted a guilty plea without advising the accused of the maximum possible penalty in contravention of W.R.Cr.P. 15(c).

On remand and following certain procedural activities, which we will describe in more detail below, the accused again entered a guilty plea to felony child abuse under W.S. 6-2-503 (June 1983 Repl.). The district court judge, who had sentenced him the first time to a term in the penitentiary of not less than four nor more than five years, again imposed an identical sentence. The district court judge gave him credit off both the minimum and maximum terms for the 565 days already served. The limit set by the legislature for incarceration upon violation of this section is not more than five years. W.S. 6-2-503 (June 1983 Repl.).

Appellant raises two issues on appeal:

1. The trial court abused its discretion in sentencing appellant to four to five years in the state penitentiary.¹

2. The trial judge erred by refusing to recuse himself from appellant’s case.

We affirm.

FACTS

We incorporate by reference the facts stated in Smallwood I; the mandate on reversal there was filed on February 18, 1988.

On March 9,1988, the district court set a pretrial conference for April 6, 1988. On March 18, 1988, appellant’s counsel filed separate motions to dismiss all counts of the information which the state had earlier dismissed in connection with the guilty plea which was the subject of Smallwood I, for a change of venue on grounds of pretrial publicity, and for change of judge. In the motion for change of judge, appellant’s counsel sought peremptory disqualification under W.R.Cr.P. 23(d), or in the alternative, disqualification for cause under W.R.Cr.P. 23(e), supported by appellant’s affidavit. On March 29,1988, the district court set all of these motions for hearing for April 6, 1988, to coincide with the pretrial conference also set for that day.

On April 6, 1988, appellant, his counsel, and the county attorney appeared before the district court judge. The judge addressed appellant, saying the court had been informed by appellant’s counsel that he wished to change his plea to a plea of guilty to the felony child abuse charge. Appellant confirmed this. At this point, the judge thoroughly informed appellant of the advice to a defendant as set out in W.R.Cr.P. 15(c). In response, appellant answered that he understood what the judge was telling him. Next the judge asked appellant if he understood that by pleading guilty he was giving up “all of those motions that you previously filed,” to which appellant replied, “Yes, sir, I do.” The judge then asked appellant if he understood he would be asked questions about the offense to which he was pleading guilty, and appellant would be required to answer those questions under oath under penalty for perjury. Appellant replied that he understood; the judge asked him whether he had “any questions for the court before I accept your change of plea,” and appellant answered, “No, sir, I don't.”

The judge asked several more questions to satisfy the requirements for a change of plea. Next, the judge listened to appellant’s testimony about his having physically abused his daughter as charged and found that a factual basis existed for the guilty plea. The judge asked appellant if he would prefer to have sentencing delayed until the judge received reports from the penitentiary. Appellant’s counsel stated that preference, and the court recessed the proceeding.

On May 12,1988, the sentencing proceeding was held. After learning that appellant, his counsel, and the county attorney had each reviewed the penitentiary report, had no additions or corrections to be made to it, and had no additional evidence to offer, the judge heard the county attorney recommend the original sentence. Appellant’s counsel recommended his client's release from prison and placement on probation. Appellant’s counsel prefaced his recommendation with the observation, “The court knows what Mr. Smallwood was sentenced to because this court sentenced Mr. Smallwood.” In his recommendation appellant’s counsel asked the judge to consider only that his client had admitted striking his daughter with a belt and slapping his ex-wife’s face, for which slapping he had already received a six-month sentence. Counsel emphatically urged the judge not to consider the criminal charges that the prosecution had dismissed, some of which involved alleged sexual child abuse. Counsel urged the judge to consider the penitentiary report which revealed that appellant had served his sentence quietly and without incident, and the mental health reports which concluded he was a physically nonviolent person of borderline intelligence who could neither read nor write and showed no signs of being a pedophile.

After hearing counsel’s recommendation, the judge asked appellant if he had anything he would like to say and if he knew of any reason why he should not be sentenced at that time. Appellant answered in the negative. In passing sentence, the judge stated he had considered:

1. probation;

2. the same reasoning and factors which he had previously considered in the original sentence;

3. the state penitentiary report which stated he had not attended counseling or therapy sessions and had not done anything to help rehabilitate himself in any way;

4. appellant had no probation plan; and

5.appellant had not demonstrated remorse and tended to minimize the gravity of the offense.

Since the judge considered and found present the same reasoning and factors which he had considered when he imposed the original sentence, we have carefully examined that reasoning and those factors for the purposes of this appeal. For that original sentencing the judge had before him the nine-page presentence report prepared by a probation officer, a report of a mental health examination prepared by Dr. Bernice B. Elkin, and a report of a psychological evaluation prepared by Dr. Jacques P. Herter. In addition, the judge heard appellant’s testimony as developed by his. counsel’s direct examination at sentencing. Summarizing, we can relate the presen-tence report contained verbatim statements of appellant’s ex-wife and daughter describing the specific incidents of physical abuse committed on them which formed the basis of the criminal charges to which appellant pleaded guilty; accounts of past abusive conduct by appellant directed toward his family members demonstrating an unmistakable pattern of abusive behavior; and accounts of alleged attempted sexual contact by appellant toward his daughter. In this presentence report, both his ex-wife and daughter expressed fear of appellant based on his past behavior.

Appellant was given ample opportunity to challenge the information contained in the presentence report. In his sentencing testimony, he denied the allegations of sexual contact with his daughter, admitted his ex-wife was afraid of him, admitted he had previously threatened his ex-wife, admitted spanking his children with a belt, admitted physically abusing his daughter by hitting her on the leg with a belt, and admitted slapping his wife’s face. In passing the original sentence, the judge said he had considered:

1. Dr. Elkins’ report;

2. the presentence report which indicated a history of abusive behavior by appellant;

3. probation and had found appellant’s probation plans to be unrealistic;

4. Appellant had minimalized his role in this situation and had avoided accepting any responsibility for it; and

5. the gravity of the offenses and the vulnerability of children to be abused by their parents.

Against this factual background, we now consider appellant’s two issues.

DISQUALIFICATION OF JUDGE

With reference to his peremptory-disqualification-of-judge issue, appellant makes two assertions of interest. First, he claims that our reversal in Smallwood I essentially voided appellant’s change of plea from not guilty to guilty, and therefore required a new arraignment for him to make a plea. Second, at oral argument appellant’s counsel claimed that the new arraignment was held on April 6, 1988, in the proceeding in which appellant pleaded guilty and “gave up” all of the previously filed motions, including the motion for peremptory disqualification of the judge. Appellant reluctantly recognizes that his disqualification motion was filed before this new arraignment. He also concedes that W.R.Cr.P. 23(d) requires that this motion shall be filed “at the time of his arraignment and following his entry of his plea.” The short irrefutable answer to appellant’s issue is that not only was his motion not timely filed within the rule, he also abandoned it at the very time he was required to make it under the rule, since he claims the April 6 proceeding was his “new arraignment.” We need not decide whether appellant’s “new arraignment” theory is correct, or whether appellant was still being handled under his original arraignment in December, 1986. Under either scenario appellant’s motion was not timely, and he abandoned the motion when he pleaded guilty on April 6, 1988.

We conclude, too, that appellant’s motion for disqualification of the trial judge for cause was abandoned by appellant on April 6, 1988. Examining appellant’s supporting affidavit, we found it deficient for failing to state sufficient facts to show the existence of prejudice on the part of the trial judge.

ABUSE OF DISCRETION

With reference to appellant’s abuse-of-discretion issue, we believe it initially instructive to identify what this issue is not about.

Appellant does not seek traditional proportionality review of his sentence under a claim that the sentence is inherently disproportionate as imposed for felony child abuse. Cf. Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); and Martin v. State, 720 P.2d 894 (Wyo.1986). See also Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (eighth amendment of United States Constitution does not require a state appellate court, before it affirms a death sentence, to compare the sentence in the case before it with the penalties imposed in similar cases if so requested by the prisoner).

Although appellant superficially mentions he feels his sentence is too long or too harsh, he fails to develop any cogent issue, let alone argument, along these lines. Accordingly, we shall neither frame nor discuss any such issue or argument. See Hennigan v. State, 746 P.2d 360, 363 (Wyo.1987).

What remains for our consideration under this abuse-of-discretion issue is appellant’s assertion that he “was punished for failing to admit sex crimes against his daughter even though all sex charges were dismissed. If the court had not considered the sex charges, [appellant] would not have been sentenced to four to five years of hitting his daughter with a belt.” Conceding that the sentencing judge did not make a specific ruling on the “sexual allegations,” appellant, without any record evidence whatsoever, makes the unsupported accusation that, “It is logical to conclude that the trial court held the sexual allegations against appellant * *

Foregoing a careful and methodical step-by-step analysis, appellant simply makes a quantum leap past the substantial evidence in the record demonstrating the sentencing judge’s basis for appellant’s sentence. We have no disagreement with appellant’s statement of the law that the sentencing judge must give the convicted defendant an opportunity to rebut pre-sen-tence information which is materially false or which furnishes invalid premises for the sentence which the judge is imposing.² That principle helps to insure that the sentencing judge will not be unduly prejudiced by such information. Griebel v. State, 763 P.2d 475, 477 (Wyo.1988). However, the record clearly shows that the information before the sentencing judge regarding the sex charges had been disclosed to appellant, and he was given ample opportunity to respond. Appellant asks us to presume that, despite these procedural protections, the sentencing judge was unduly affected by irrelevant and prejudicial matters. Such a presumption is contrary to the law; appellant must establish that the sentencing judge in fact rested the sentence on false or improper premises. Coletti v. State, 769 P.2d 361, 362-363 (Wyo.1989).³ Appellant has failed to establish that here. He apparently believes that his merely saying it is so will, magically, make it so. We dispel that belief.

Considering that appellant has made no effort on this issue to identify support in the record, and that the record in this regard amply supports the sentencing judge’s exercise of discretion in imposing sentence, we need not, and do not, consider this issue further.

AFFIRMED.

URBIGKIT, J., filed a dissenting opinion, in which MACY, J., joins.

1 . This issue was raised but not addressed on the first appeal.

2 . We have found interesting articles in Giorno, Federal Criminal Sentencing: The Case for Evidentiary Standards, 13 Loy.U.Chi.LJ., 875-916 (1982); and Note, A Hidden Issue of sentencing: Burdens of Proof for Disputed Allegations in Pre-sentence Reports, 66 Geo.LJ. 1515-1549 (1978).

3 . Cf. Christy v. State, 731 P.2d 1204, 1207-1208 (Wyo.1987), a second-degree sexual assault case where defendant claimed sentence was abuse of discretion because it was based on inappropriate presentence report information; this court, per Urbigkit, J., determined that "filed reports and information are evidence for the exercise of sentencing discretion, subject only to the rights of the convicted individual to deny, dispute or disprove.” We affirmed the sentence, finding no abuse of discretion, even though the sentencing judge considered prior felony charges which had been apparently dismissed, as well as another sexual assault charge which was dismissed pursuant to the plea bargain resulting in the contested sentence. See also MJP v. State, 706 P.2d 1108, 1109-1110 (Wyo.1985), an indecent liberties case, in which we found no abuse of discretion where the sentencing court required submission of and considered for sentencing purposes evidence of the incest charges which the state had agreed not to file in exchange for a guilty plea. We found no infringement upon the convicted individual’s right to due process.